PEOPLE OF MI V MICHAEL SCOTT APGAR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 9, 2004
9:05 a.m.
Plaintiff-Appellee,
v
No. 247544
Wayne Circuit Court
LC No. 02-012129-01
MICHAEL SCOTT APGAR,
Defendant-Appellant.
Official Reported Version
Before: Murphy, P.J., and O'Connell and Gage, JJ.
GAGE, J.
Defendant appeals as of right his jury trial conviction of third-degree criminal sexual
conduct (CSC III), MCL 750.520d(1)(a) (sexual penetration with a person at least thirteen years
of age and under sixteen years of age). The trial court sentenced defendant to fifty months to
fifteen years in prison. We affirm.
I. Facts and Procedure
The victim in this case is a thirteen-year-old girl. Defendant lived with the family of the
victim's friend in Dearborn. At her friend's house, the victim willingly got into a car alone with
defendant and his two friends because they invited her to go to "the store" with them. The victim
testified that they drove around for several hours while she was forced to smoke marijuana
because a sharp knife-like object was pressed against her neck. They arrived at a home in
Hamtramck. The victim did not attempt to escape because she did not know her whereabouts.
Defendant took the victim into an empty bedroom where they engaged in sexual
intercourse. The victim testified that defendant had placed the knife-like object to her throat and
threatened to kill her if she did not do as he said. The victim claimed in addition that both of
defendant's friends forced her to perform oral sex by threatening her with the same knife-life
object. The victim also alleged that one of defendant's friends burned a homemade tattoo onto
her chest before forcing her to perform oral sex. The victim was dropped off at or near her home
after midnight, and she told her grandmother that she had been raped.
At the hospital, the victim underwent an examination, and a rape test was administered.
The victim sustained a small bruise to her right buttock and irritation and redness to her vaginal
opening, which was consistent with forcible sexual assault. The victim's vaginal area tested
positive for semen, and a DNA test revealed that it matched defendant's types. From the carpet
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in the bedroom of the Hamtramck house, the police recovered three semen stains that matched
the DNA types of defendant and his two friends.
Defendant was originally charged with one count of first-degree criminal sexual conduct
(CSC I), MCL 750.520b(1)(e) (person armed with a weapon or an object that the victim believes
is a weapon), and one count of CSC I, MCL 750.520b(1)(d) [ii] (person is aided or abetted by
one or more other persons and uses force or coercion to accomplish the sexual penetration).
After the jury was selected, the prosecutor orally moved to amend the felony information to
include a charge of CSC III, MCL 750.520d(1)(a). The prosecutor argued that it was necessary
to amend the felony information under People v Cornell, 466 Mich 335; 646 NW2d 127 (2002),
because CSC III under MCL 750.520d(1)(a) is not a necessarily lesser included offense of CSC I
under either MCL 750.520b(1)(d) or (1)(e). The trial court denied the prosecutor's request to
amend the information as follows:
The Court: . . . I am not amending any information two minutes before we
swear the jury in.
So, I mean, that's the ruling.
It's latches, or whatever you want to call it, you guys [the prosecution] had
a full opportunity, not you, but anybody in your office had an opportunity to do
this at an earlier time.
The defense is here, ready to go to trial.
Your motion to amend the information is denied.
Okay?
The Prosecutor: But the Court is willing to give the lesser. There's no—
The Court: Well, the lessers [sic] is something different, you know.
But I'm not amending anything.
Over defense counsel's objection, the trial court subsequently provided a jury instruction on CSC
III, and the jury convicted defendant on that charge.
II. Amending Felony Information
Defendant first argues that the trial court erred by permitting the prosecution to amend
the felony information to include a charge of CSC III and providing the corresponding jury
instruction. Because the trial court actually denied the prosecution's request to amend the
information, we find that defendant has framed the issue incorrectly. Rather, the question is
whether the trial court erred in instructing the jury on CSC III as a necessarily included lesser
offense of CSC I as charged. We review de novo claims of instructional error and
determinations whether an offense is a necessarily included lesser offense. People v Mendoza,
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468 Mich 527, 531; 664 NW2d 685 (2003); People v Lowery, 258 Mich App 167, 173; 673
NW2d 107 (2003).
MCL 768.32(1) provides:
Except as provided in subsection (2), upon an indictment for an offense,
consisting of different degrees, as prescribed in this chapter, the jury, or the judge
in a trial without a jury, may find the accused not guilty of the offense in the
degree charged in the indictment and may find the accused person guilty of a
degree of that offense inferior to that charged in the indictment, or of an attempt
to commit that offense.
MCL 768.32(1) "only permits instructions on necessarily included lesser offenses, not cognate
lesser offenses." People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002); Cornell, supra at
356. A necessarily included lesser offense is an offense in which all its elements are included in
the elements of the greater offense such that it would be impossible to commit the greater offense
without first having committed the lesser offense. Mendoza, supra at 532; People v Bearss, 463
Mich 623, 627; 625 NW2d 10 (2001). A cognate lesser offense shares several of the same
elements and same class or category as the greater offense but contains some elements distinct
from the greater offense. Mendoza, supra at 532 n 4; Bearss, supra at 627. A requested
instruction on a necessarily included lesser offense is appropriate "if the charged greater offense
requires the jury to find a disputed factual element that is not part of the lesser included offense
and a rational view of the evidence would support it." Cornell, supra at 357. The Cornell Court
concluded that, pursuant to MCL 768.32, instructions on cognate lesser offenses are
impermissible because they do not provide a defendant with adequate notice that he might be
charged with the lesser offense. Cornell, supra at 353-355, 359; Bearss, supra at 628-629.
Defendant was charged with one count of CSC I perpetuated by one who is armed with a
weapon or an instrument that the victim reasonably believes is a weapon, and a second count of
CSC I perpetuated by one who is aided or abetted by one or more other persons, and the offender
uses force or coercion to accomplish the act of sexual penetration. MCL 750.520b(1)(d) [ii], (e).
The jury convicted defendant of CSC III, sexual penetration of another person at least thirteen
years of age and under the age of sixteen, MCL 750.520d(1)(a). Neither of the charged counts of
CSC I includes the element of the victim's age. Thus, it is possible to commit CSC I under MCL
750.520b(1)(d) or (1)(e) without committing the uncharged offense of CSC III, MCL
750.520d(1)(a). Accordingly, under Cornell CSC III, MCL 750.520d(1)(a), is not a necessarily
included lesser offense of CSC I, MCL 750.520b(1)(d) or (1)(e). Because both offenses require
the act of sexual penetration and are of the same category of crimes, CSC III is a cognate lesser
offense of CSC I as applied to this case. Although defendant was convicted of an uncharged
crime, we conclude that defendant was not deprived of due process because all the elements of
the uncharged crime were proved at the preliminary examination and trial without objection,
providing defendant adequate notice. Cornell, supra at 353-355; Bearss, supra at 628-629;
People v Hunt, 442 Mich 359, 362; 501 NW2d 151 (1993).
The right to a preliminary examination is a statutory, not constitutional, requirement.
Hunt, supra at 362. The defendant in Hunt was charged with gross indecency between males,
and, after the preliminary examination, the prosecutor sought to amend the felony information to
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charge second-degree criminal sexual conduct (CSC II). The Court considered that the
complaining witness's testimony at the preliminary examination met the prosecutor's burden and
supported the greater charge. Id. at 364. The Court concluded that the elements of both offenses
had been shown, and the defendant did not suggest anything that his attorney would have done
differently if the defendant had originally been charged with CSC II. Because the defendant was
not prejudiced by unfair surprise, inadequate notice, or insufficient opportunity to defend against
the accusations, the Court concluded that it was proper to remand for amendment of the
information to charge CSC II.
Like the situation in Hunt, the victim's testimony at preliminary examination and trial
supports a CSC III charge because she testified about her age and the sexual encounter with
defendant. Defendant was not prejudiced by unfair surprise, and defendant had adequate notice
that he might be charged with CSC III. It is clear under Hunt that defendant may be tried on the
CSC III charge without a preliminary examination. Moreover, CSC III is part of the same
statutory scheme and was unquestionably drafted as a lesser or inferior offense to the charged
crime. We conclude that defendant's due process rights are not implicated by the CSC III jury
instruction because all elements were proven, and such evidence was admitted without objection.
In this respect, we distinguish Cornell because of the unique facts presented. CSC III, MCL
750.520d(1)(a), is a strict liability offense, People v Cash, 419 Mich 230, 242; 351 NW2d 822
(1984), and defendant has not been denied the opportunity to defend against the accusations.
III. Sentencing
Defendant also alleges several errors in the trial court's scoring of the offense variables of
the sentencing guidelines. We review a trial court's scoring decision for an abuse of discretion to
determine whether the evidence adequately supports a particular score. People v Hornsby, 251
Mich App 462, 468; 650 NW2d 700 (2002).
Defendant first challenges the scoring of offense variable (OV) 3 at five points for bodily
injury to the victim not requiring medical treatment. MCL 777.33(1)(e). There was medical
evidence that the victim received a homemade tattoo and sustained a small bruise to her right
buttock and irritation and redness to her vaginal opening. Regardless of whether the jury
believed that the sexual intercourse was forced or consensual, there was sufficient evidence of
injury to support the trial court's decision to score OV 3 at five points.
Defendant next challenges the scoring of OV 4 at ten points for serious psychological
injury to the victim that "may require professional treatment." MCL 777.34(2) (emphasis
added). There is no requirement that the victim actually receive psychological treatment.
Because the victim testified that she was fearful during the encounter with defendant, we find
that the evidence presented was sufficient to support the trial court's decision to score OV 4 at
ten points.
Defendant challenges the scoring of OV 8 at fifteen points for transporting the victim to
another place or situation of greater danger or holding the victim captive beyond the time
necessary to commit the offense. MCL 777.38(1)(a). Although the jury found that there was no
use of force, the victim was transported from her friend's house in Dearborn to an unfamiliar
house in Hamtramck, where she was involved in sexual encounters with three men she barely
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knew. We conclude that this evidence supported the trial court's scoring of OV 8 at fifteen
points.
Defendant also challenges the scoring of OV 10 at fifteen points for predatory conduct,
asserting that sexual contact with an underage person always involves the victim's vulnerability.
MCL 777.40(1)(a). Both the timing and the location of an assault are factors of predatory
conduct before the offense, which conduct includes watching a victim and waiting for any
chance to be alone with her at a separate location. People v Witherspoon, 257 Mich App 329,
336; 670 NW2d 434 (2003). The victim testified that, although defendant and his two friends
invited the victim to accompany them to the store, they drove around for at least two hours,
forcing the victim to smoke marijuana. Moreover, the victim claimed that defendant led her to
an unfurnished bedroom in the Hamtramck house, shut the door, and forced her to smoke more
marijuana before engaging in sexual contact. We therefore conclude that there was sufficient
evidence to support the trial court's scoring of OV 10 at fifteen points.
Finally, defendant challenges the scoring of OV 14 at ten points for defendant's role as a
leader in a multiple offender situation. MCL 777.44(1)(a). We view the entire criminal episode
when determining if an offender was a leader in a multiple offender situation. MCL
777.44(2)(a); People v Johnson, 202 Mich App 281, 289-290; 508 NW2d 509 (1993).
Defendant was the first to have sexual contact with the victim, and he had the most sexual
contact with her. He was the oldest of the offenders, and only his DNA types matched the semen
found in the victim's vaginal area. Although defendant was not the one driving the vehicle, we
conclude that there was sufficient evidence that he led the group in the sexual contact.
Therefore, the trial court's scoring of OV 14 at ten points was proper. Because there was
adequate evidence to support the trial court's calculation of each of the challenged offense
variables, we conclude that the trial court did not abuse its discretion and defendant is not
entitled to resentencing.
Affirmed.
/s/ Hilda R. Gage
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